Wilkie and the "War on the West":

Any backlash against the Supreme Court's Wilkie v. Robbins decision is likely to come from the West. Robbins' claims resonate in the West in a way it may be difficult for landowners in other parts of the country to appreciate. In many western states government ownership of land is the norm, and private property interests are inexorably intertwined with the interests and authorities of various federal agencies. Approximately one-half of the land west of the Mississippi is owned by the federal government, and in some states the proportion of federal ownership exceeds 80 percent. To complicate matters, in many areas federal ownership forms a patchwork across the landscape, intermingling with private and state land. For this reason, ranchers like Robbins cannot operate without coming into constant contact with federal officials. This de facto dependence on federal lands is difficult for non-westerners to appreciate, and makes western landowners in the West particularly vulnerable to the sort of bureaucratic malfeasance alleged in this case.

Western landowners are also more likely to view Uncle Sam as an undesirable neighbor (apart from any federal subsidies they may receive). In the private sphere, adjoining landowners often accept minor indignities and trespasses without conflict, much as passersby rarely come to blows after brushing by one another on a busy street. Private landowners have a strong incentive to get along with their neighbors, as the benefit when other landowners reciprocate. Relations with the federal government are not quite the same, however. If federal officials decide to adopt a “zero-tolerance” approach, they can make life very difficult for an individual landowner at little cost to themselves. Given the need for rights of way, easements, and access to federal lands, there is ample opportunity for bureaucratic mischief through arbitrary actions. If an agency cancels permits or takes other actions without sufficient justification, he may be able to win his rights back through an administrative appeal, but there is no real remedy against a campaign of harassment and intimidation of the sort Robbins alleged.

Perhaps unintentionally, one effect of the Wilkie opinion may be to increase tensions and hostility between private landowners and federal agencies in the West. Federal officials now know they have less to fear from litigious landowners and may feel emboldened to act more aggressively in pursuing federal interests. Private landowners may also learn that any time they fail to press any legal claim against the government, they are undermining their ability to obtain relief. As the majority notes:

It is one thing to be threatened with the loss of grazing rights, or to be prosecuted, or to have one’s lodge broken into, but something else to be subjected to this in combination over a period of six years, by a series of public officials bent on making life difficult. Agency appeals, lawsuits, and criminal defense take money, and endless battling depletes the spirit along with the purse. The whole here is greater than the sum of its parts.
Yet relief is now only available for the individuals parts, rather than the whole.

Robbins waited to sue until it was clear he faced a “death by a thousand cuts,” at which point he sought relief for the entire harassment campaign. With this avenue closed, the only option for Robbins and other landowners in his position is to litigate and appeal each and every federal action, no matter how piddling or small, that is potentially adverse to the landowner’s interests. Indeed, the potential for administrative relief for some of the actions about which Robbins complained was one of bases for the majority’s holding. Now that the Court has completely a landowner’s ability to seek relief for a series of deliberate actions, there could be an escalation of legal conflict between landowners and government agencies, and it is hard to see how this would be in anyone’s interest.

In his majority opinion, Justice Souter details all the instances in which Robbins could have filed administrative actions, appeals, or other claims, but failed to do so. I doubt Robbins, or similarly situated landowners, will be likely to exercise such forbearance in the future. They will lawyer up instead, lest they suffer Robbins' fate. Given the majority’s professed concern that allowing Robbins’ claim would unleash a waive of similar federal lawsuits, this is quite an ironic twist.